We shall overcome

By
November 8, 2008

America seriously needs a lesson in civics, most particularly the Bill of Rights. In three states this past Tuesday, as voters took a historic leap forward in electing Barrack Obama, they simultaneously said “separate and not really equal” to gays and lesbians. But we will not give up, we will not accept second class citizenship, and one day, we shall overcome.

We shall overcome
We shall overcome
We shall overcome some day

The issue in California will go back to the courts to decide whether this initiative measure meets Constitutional muster or not, so the battle continues, it has just changed the venue. But that does not address the appalling lack of understanding about equal rights by those who voted to ban gay marriage.

For some, they believe that being gay is a choice and therefore not entitled to legal protection. Ask any gay person and they will assure you it is not a choice to prefer their same gender, even if it is a choice whether to act on those feelings or not. How many heterosexuals do you know who say their orientation is a choice? Should gays have the right to prohibit opposite gender marriage? If not, what is the difference?

Some base their position on religion, and to them I say I won’t impose my views on their religion and ask that they not impose their religion on my life. If I don’t have the right to tell you who you can marry, why does your Bible have the right to dictate who I can?

The bitterest pill of all though comes from African Americans who voted overwhelmingly for these bans. One op-ed written by a self-described black lesbian contended it was, after all, just a white gay male issue and not a civil rights issue at all. She argued that gay white males didn’t reach out to her community to show why they should vote no on 8 (our proposition here in California).

My response is that no one from her community came to me when at age 17 I read about a demonstration against racial segregation in housing at a Los Angeles new tract of homes. That was 1957. No one had to tell me to keep marching, demonstrating, protesting, writing, voting and otherwise insisting on equal treatment for all ever since. No one came to me when, driving from L.A. to Texas with my buddies, one Hispanic, another Afro Cuban, we were denied service at every restaurant, motel and other facility along the way. I knew that it was up to me to stand for the rights of all people, so I insisted in sitting in at a lunch counter, the right to integrated housing at the Kiwanis sponsored convention in Texas, and even the right to sleep in an all “negro” motel on the way.

I just don’t buy all the excuses and explanations for those who cannot own up to their bigotry. Yes, that is what it is. I do not care what you think of my sexuality, I don’t care what your damn Bible, Koran or whatever has to say.

This is America. Our Constitution demands equal rights for all, not just those we are “comfortable with” or approve of. I may be going to hell in your way of thinking, but the Constitution gives me the same rights as you along the way.

We shall all be free
We shall all be free
We shall all be free some day
We shall overcome some day.

In his majority opinion, Justice Richard N. Palmer agreed with the activists. He wrote that the “segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm,” in light of “the history of pernicious discrimination faced by gay men and lesbians and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody.”

In a dissenting opinion, Justice Peter T. Zarella wrote that “there is no fundamental right to same sex marriage.” from BOSTON GLOBE

pollchecker

November 8, 2008 at 9:41 pm

I do not believe for a moment that the Federal Supreme Court will allow this to stand anymore than forbidding gays from adopting children in Arkansas. That’s where it is going to end up, you know. Thank god we have a future POTUS Obama who will not load up the Supreme Court with a bunch of neo-conservatives like Bush did.

In the meantime, I like what Melissa Ethridge wrote. Basically, she stated that if she is not a citizen then she doesn’t need to pay taxes. If all the gay people in California, changed their legal residence to another state, then they wouldn’t have to pay California’s state income tax and that would really hurt.

Interestingly enough, a lot of California Obama voters voted against it….like African Americans and Hispanics. Can you say Catholic voters? or even Baptists?

I don’t see why they just don’t change the federal law to allow civil unions the same rights as marriages and then this will all go away.

However, it should be noted that the state was ORIGINALLY only suppose to register marriages performed by the church. Now they are telling the church who can or cannot be married.

If a minister, pastor or whatever will marry someone, I would think that the Bill of Rights would guarantee that marriage under freedom of religion. Isn’t the state defining marriage, a conflict between church and state.

gazelle1929

November 9, 2008 at 3:17 pm

“If all the gay people in California, changed their legal residence to another state, then they wouldn’t have to pay California’s state income tax and that would really hurt.”

I must be missing something here. The only way these people could change their legal residence to another state is by moving to another state. Then they wouldn’t be in California or subject to California’s taxation. But if they work and live in California they have to follow California rules.

If all of us could change our tax liability by just saying our legal residence is elsewhere then there’d be a huge number of people with legal residence in Florida, which has no income tax. But it doesn’t work that way.

Hal Brown

November 9, 2008 at 10:19 am

Breathing a sigh of relief that McCain won’t be appointing the older members who are more liberal, this has us all looking at the ages and health of the entire court and the political leanings of the members:

Seven of the current justices of the court were appointed by Republican presidents, while two were appointed by a Democratic president. It is popularly accepted that Chief Justice Roberts (53) and Justices Scalia (72), Thomas (60), and Alito (58) compose the Court’s conservative wing. Justices Stevens (88), Souter (69), Ginsburg (70) and Breyer (75) are generally thought of as the Court’s liberal wing. Justice Kennedy (72), generally thought of as a conservative who “occasionally vote[s] with the liberals”, is considered most likely to be the swing vote that determines the outcome of certain close cases. Wiki

As far as the reasons that people voted for Obama and against equality, I think the answer is complex. I hope some serious research is done into this, because unless we can actually ask people and do an in-depth analysis of their answers all we can do is speculate.

I’ve been thinking about this a lot since it was my only disappointment in the election. All I can come up with is from a psychological perspective is that those voters have significant unresolved conflicts about their own sexuality. The word homophobia is overused and I’m not sure anybody actually knows precisely what it is or why people have it.

It’s not an official diagnosis as a phobia unless the fear actually manifests itself in a behavior, especially one that is a life impairment. Bigotry isn’t defined as a psychiatric impairment.

However, it certainly is a moral one.

pollchecker

November 9, 2008 at 5:18 pm

If you purchase a legal residence in another state, that is your residence regardless of whether you work in California, NYC, etc.

I know quite a few people who have moved their primary residence to a nearby state and commute to LA for work purposes. That’s what I meant.

gazelle1929

November 9, 2008 at 5:33 pm

I think you will find that that makes no difference for tax purposes unless the two states have reciprocal agreements on how to treat income. For example, people who live in Virginia and work in DC are not liable for DC income taxes but only because there is an agreement between DC and Virginia to that effect.

But in general, and without such an agreement, income earned in a state is taxed by that state.

erika morgan

November 10, 2008 at 12:13 am

This is one area where we have made a fundamental mistake of mingling state and religion. The correction is simple; Government must get out of the business of granting “marriage” to anyone. “Marriage” in any and all cases can be replaced with a civil union contract that grants all the special protections about property, inheritance, responsibility for children, financial unit, spousal support and contract and hospital visit considerations that are currently granted married couples. These unions would be covered by a license as marriages are currently. If couples wished to also be “Married” in a “church” they could contract with such organizations as they wished complete that organizations requirements and be married. Churches could naturally make their own requirements as suits their sensibilities for their own members, but the “civil contract” part would still come under the States Rule of Law.

This is not so way out, all births are recorded and birth certificates are handed out. If families want to Baptize their children they talk to their choice of church about that as a separate and religious issue.

Carl Nemo

November 10, 2008 at 1:55 am

Hi Erika Morgan…

Truly a brilliant, progressive solution for a complex issue… : )

Carl Nemo **==

Hal Brown

November 10, 2008 at 9:15 am

Enlightening open minded people is part of the answer. As Lee Stranahan points out in HuffPo African Americans and Latinos went overwhelmingly for Obama, but may be among those who voted against keeping gay marriage legal in California.

They know what it is like to be discriminated against, but may have voted for Prop. 8 in part because of religious beliefs.

They may be among those who are most amenable to rethinking their position.

Flapsaddle

November 10, 2008 at 11:11 am

Well, Mr. Hoskins, how does it feel to be on the receiving end of those who have the power? I’m referring to your remark of several months ago in some Reader Rant threads on natural rights, property rights and smokers’ rights.

Most sincerely,

T. J. Flapsaddle

Phil Hoskins

November 10, 2008 at 12:53 pm

Flappsaddle, if that is your real name, you know nothing of how :those who have power” have impacted my life, so keep your snarkiness to yourself please.

There is no comparison between your “right” to pollute my air with your smoke and the right to equal treatment under the law regarding marriage. If you cannot see the differnece it just means you are blind to justice.

I most clearly understand the difference, sir. I do not confuse rights inherent to our humanity with privileges granted by the power of government. I was pointing out how your seeming devotion to the idea that government ultimately is the source of rights has impacted you directly – without any intention of being “snarky” (whatever that may mean).

As to your misstatement of the natural rights position in those threads, there was not a question of the right to your air being polluted; the question was whether or not those like yourself who seem to believe, like Mao, “that power comes out of the barrel of a gun”, have the right to arbitrarily insert themselves into what ain’t none of their business.

For the record, I don’t believe who you choose to live your life with is anyone else’s business. Further, I believe that Prop 8 will not ultimately pass a constitutional muster with either the state or the feds.

Most sincerely,

T. J. Flapsaddle

Phil Hoskins

November 11, 2008 at 3:46 am

Apples and oranges, Flappsaddle.

That discussions involved the source of laws. This discussion involves the Constitution. Once a constitution is in place, it must be adhered to. Really a false comparison.

Phil Hoskins

Flapsaddle

November 11, 2008 at 10:54 am

You missed the crux of the matter then, and you are missing it now. Do your rights derive from the permission of government, or do they derive from your humanity?

If you believe the first, then you really have no complaint about the voters of California arbitrarily deciding that homosexuals do not have the right to marry. Those that have the power have decided what your “rights” are.

Most sincerely,

T. J. Flapsaddle

zursch

November 11, 2008 at 8:55 pm

While being human may entitle us to rights, it does not on its own deliver them. For that, we have to use politics.

Thus, while the voters of California have decided what rights Mr. Hoskins and others may exercise today, the question is irrelevant to the source of those rights.

Or, to quote something I once read, the enumeration of certain rights shall not be taken to deny or disparage others retained by the people.

Abstracting something as tangible as writing prejudice into law is not helpful unless you’re writing a Philosophy 101 term paper.

JZ

Flapsaddle

November 12, 2008 at 10:19 am

That’s what I said, isn’t it?

While being human may entitle us to rights, it does not on its own deliver them. For that, we have to use politics.

I believe that Jefferson said that the sole purpose of government was to secure already-existing rights.

Thus, while the voters of California have decided what rights Mr. Hoskins and others may exercise today, the question is irrelevant to the source of those rights.

Unless, like Mr. Hoskins, you tend to think that your rights come from the largess of government and do not derive from your status as a human being.

Or, to quote something I once read, the enumeration of certain rights shall not be taken to deny or disparage others retained by the people.

If you believe that rights are inherent, that is the case; however, if you believe they derive from the government, then they are negotiable.

Most sincerely,

T. J. Flapsaddle

Rhoddy

November 10, 2008 at 6:35 pm

Phil,

Thanks for writing the “We Shall Overcome” article. I have great difficulty articulating through the written word but you wrote how I felt and it eased my frustration with those who voted for Prop 8.

Looking forward to more of your articles.

Rhoddy
Wilmington, DE

Thanks and “We Shall Ovecome Someday”

Hal Brown

November 11, 2008 at 12:55 pm

The majority, whether expressing their will by referendum or through electing their legislators, are sometimes morally and ethically wrong.

Likewise, the courts are sometimes morally and ethically wrong in their rulings.

Not all the time though. Sometime the courts, in ruling on rights assured in the Constitution, are a moral and ethical force.

Phil, don’t you think that the the following (in bold) applies to same sex marriage?

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Phil Hoskins

November 11, 2008 at 1:13 pm

Absolutely Hal. At the present state of the issue, however, we are dealing with the Constitution of the State of California and have yet to reach the federal level, where the courts are less liekely, I am afraid, to be receptive to the argument.

We shall see

Phil Hoskins

Malibu

November 11, 2008 at 2:24 pm

Phil, what I resent is the use of the words “sanctity of marriage.” Does that mean that those of us who married outside the church and by a State Judge sans the words mentioned on our certificate, invalidates our ceremony? My wife and I chose a civil wedding as neither of us were involved in any church.

I tend to understand Flapsaddle’s words but do not recall yours. I do not want any level of government to remove my rights to smoke. I would outside for my habit and for years did not smoke in car when the kids were small.

I have no problem with others smoking in my home even though I did quit years ago. I resent any single person trying to legislate against the civil rights of another. Coming in late to this discussion between you two probably disqualifies my statement.

Malcolm, shrugging

zursch

November 11, 2008 at 9:16 pm

More generally, it’s just a matter of time before same sex marriage is recognized. The demographics are against those who would prevent it. People under 30 went 2:1 against Proposition 8. People over 65 supported it. Give it 20 years and it’s not even a question any more.

But justice delayed is justice denied. Esp. for those of us who watched so many of our friends die young. As a married straight guy with many GLB friends, I don’t find the notion of gay marriage even slightly controversial. That stands in stark contradistinction to the religious right and the Mormon Church – those folks are most assuredly scary, and
they funded Prop. 8 and organized its support.

My vengeful side says it’s time to have an initiative in California to de-recognize the marriages of Mormons. After
all, who could have missed the whole Warren Jeffs episode lately? Why do so many of these “LDS” groups marry young girls to older men and practice polygamy? And really, why do they keep their church ceremonies secret? What are they hiding? Clearly, the sanctity of marriage and common decency requires that we withdraw our social support from their strange activities. So tax the Mormon church, deny their marriages, and make them feel as welcome as they were back before the big move to Utah.

Oh yeah. I’m going to have a field day the next time a couple of Mormon lads appear on the doorstep.

It’s easy to go down that road – bigotry can be made to cut both ways. If the people are into drawing lines and placing others on the wrong side of those lines, there’s no end to the mischief that can ensue.

But seriously, the real lesson of Prop. 8 is that the Religious Right is dying. Dying majorities tend to want
to write their prejudices into law to keep them going
long after they wither and die.

Take heart, there’s still the SCOTUS to contend with and there’s always another election. At a minimum, the constitutional provision against ex post facto laws should grandfather those who married before Prop 8 took effect.

JZ

gazelle1929

November 12, 2008 at 2:43 pm

JZ:

The Warren Jeffs sect does not, so far as I know, have any people who have more than one marriage. They have many people who have more than one state of matrimony.

Since the state of California does not recognize a state of matrimony (a sacramental marriage) they cannot “de-recognize” it.

The reason there were no charges brought in Texas was because they could not find any evidence of polygamy, which is by definition one person with two or more “legal” spouses at the same time. No marriage licenses exist to prove polygamy and those people just want to “live in sin” in the eyes of the mainstream Christians. No laws against that.